Ishmael Jones: What process is due?

This week brought word that the Department of Justice has rejected a Freedom of Information Act request from the New York Times asking the agency to reveal the legal basis for the newly unveiled American program of strategic drone-attack assassinations of American citizens off the field of battle. Ishmael Jones draws on his experience working as a case officer for the CIA to offer this commentary from a perspective that differs from our own, which is probably closer to that of William Saletan:

I’ve been intimately involved in the targeting of terrorists and believe, as do nearly all Americans, that terrorists must be brought to justice. The recent killing of terrorists in Yemen ended the lives of two men who were almost certainly guilty and who posed a threat to innocent Americans. However, the troubling fact remains that these were executions of US citizens without trial. In addition, the 2012 National Defense Authorization Act may permit the indefinite detention of US citizens without jury trial.

In foreign intelligence related cases, an impartial jury does two things: it can prevent mistakes, and it can provide the only form of impartial justice available in the process of targeting terrorists who are US citizens.

Mistakes are frightfully easy to make, especially in gathering the numbers used to identify location, address, or telephones of suspected terrorists. Every number needs to be checked and re-checked. If one number in a grid coordinate is incorrect, it can mean a missile will strike a completely unintended location. During my CIA career I saw so many incorrect numbers that I was suspicious of any number until it had been double-checked. If someone handed me a telephone number and the number did not work, I learned to try changing a 3 to an 8 or a 1 to a 7, and to switch the numbers most commonly transposed. With so many layers in the chain of command, employees will often pay little attention to the data they’re producing because they are simply not aware of its importance.

Identifying a suspected terrorist with an Arabic name is difficult because Arabic names are complex, with numerous nicknames. In addition, terrorists use aliases. The US government employees involved in deciphering these names for the most part have no training in Arabic.

Targeting terrorists is stressful and tiring, and mistakes happen all the time. The ordinarily highly efficient Israeli Mossad once killed a Norwegian waiter they’d mistaken for a terrorist.

The raw data on the identity of a terrorist is easy to manipulate. With more than 90 percent of CIA employees living and working entirely within the United States, the number of good foreign intelligence sources is limited. Some sources are people who will invent information in order to receive money. Some will provide information intended to lead to the killing of someone who is not a terrorist at all, in order to settle a score with that person. US citizens deserve the special review that an impartial jury would provide.

Mistakes are one thing. A much more troubling aspect of targeted killings, however, is that they bring personal benefit to those involved in the killings. As our system is currently structured, many of the people involved in the killing of the terrorists in Yemen will personally benefit through bonuses and promotions. Everyone gets to look busy. More than half of CIA employees are contractors, and terrorist killings enhance their paychecks and job security. There are strong incentives encouraging this targeting process.

The Justice Department is intended to be one check, one safeguard, in the process. Under President Obama, the Justice Department has become highly politicized, however, and provides no impartial review. It has prosecuted cases that serve its political agenda and dropped cases that do not serve its agenda. The decision on who to kill will not be made by brave American soldiers on the battlefield but by government bureaucrats in Washington, DC.

There’s no guarantee that an individual judge will necessarily provide impartial review either. Today’s judges are often just lawyers who like the comfort of a government job, beholden to the government for employment. (I confess that I am biased on this point, having been prosecuted by the CIA for criticizing it, and denied a trial – USA v. Ishmael Jones, Judge Gerald Bruce Lee, Eastern District of Virginia. But that’s another story).

President Obama received the biggest boost in approval ratings of his presidency for the killing of Osama bin Laden. Why then should he and his administration, desperate for higher approval ratings as election season approaches, not engage in more killings? Each time he kills he gets a ratings boost. Each time an execution occurs it means money and power for a lot of people. I cannot count how many times we have killed a vitally important terrorist leader, only to find we now have to take out his replacement, and then his replacement’s replacement. There are powerful incentives, but limited checks and balances in place to prevent unwarranted killings.

It’s a lot easier to push a button and send out a drone, and kill a suspected terrorist than to put people overseas to do the hard work of intelligence gathering. Drone attacks avoid all the lonely, distant work and the learning of languages and cultures necessary in finding vital intelligence.

The existing system enables the execution of US citizens without jury trial. If it expands unchecked, it can become a conveyor belt for the targeting of innocent American citizens without benefit of jury trial.

When it comes to killing a US citizen, only an impartial jury can provide justice.